# Fudge v. Brown

> District Court, D. New Mexico · July 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10280246

## Case

- **Court:** District Court, D. New Mexico
- **Decided:** July 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

BRADLEY CLYDE FUDGE,

Plaintiff,

v. CV No. 20-674 CG

ALAN J. BROWN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Leave to Proceed In
Forma Pauperis & Supporting Affidavit, (Doc. 2), filed July 9, 2020; and Plaintiff’s Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983, (Doc. 4), filed July 9, 2020.
1. Motion to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that
the Court may authorize the commencement of any suit without prepayment of fees by
a person who submits an affidavit that includes a statement of all assets the person
possesses and that the person is unable to pay such fees.
When a district court receives an application for leave to proceed in forma
pauperis, it should examine the papers and determine if the requirements
of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted.
Thereafter, if the court finds that the allegations of poverty are untrue or that
the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox,
305 F.2d 58, 60 (10th Cir. 1962)). “The statute [allowing a litigant to proceed in forma
pauperis] was intended for the benefit of those too poor to pay or give security for
costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948). While a
litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that one
cannot because of his poverty pay or give security for the costs and still be able to
provide himself and dependents with the necessities of life.” Id. at 339.
In the Application, Plaintiff provided the following information: (i) Plaintiff's
monthly income is $1,932.00; and (ii) Plaintiff’s monthly expenses total $2,084.00. (Doc.
2). The Court finds that Plaintiff is unable to pay the costs of this proceeding because

his monthly expenses exceed his monthly income, and the Application is therefore
GRANTED.
2. The Complaint
Plaintiff alleges his civil rights were violated when Defendant Brown, a Magistrate
Judge in Sierra County, New Mexico, “re-adjudicated (from Probation) the misdemeanor
sentence from 364 days in County Jail to 686 days in State Prison, then a second time,
re-adjudicated the sentence to 544 days in prison, denying plaintiff due process, both of
which exceed the jurisdiction of this Court of Limited Jurisdiction.” (Doc. 4 at 4). Plaintiff
alleges that the other “Defendants knew or should have known of the civil rights

violations, especially since this was not an isolated incident.” Id. Plaintiff seeks the
following relief: (i) “10 months of lost wages, $18,766.00;” (ii) “Damage and theft due to
squatters at my house $150,000.00;” (iii) “$10,000 due to loss of vehicles;” and (iv)
“Punitive damages in the amount of $4,000,000.” Id. at 14-15.
a. Defendant Brown
Plaintiff alleges that Defendant Brown changed Plaintiff’s conditions of release
and failed to inform the probation department resulting in the probation department
requesting revocation of release and Plaintiff’s arrest. See (Doc. 4 at 6-8). Defendant
Brown issued an arrest warrant resulting in Plaintiff’s arrest. Plaintiff alleges that during
a hearing, Defendant Brown did not allow Plaintiff to speak thereby denying Plaintiff due
process. See id. at 6-8. Plaintiff was subsequently held at the Southern New Mexico
Correctional Facility (“SNMCF”).
The Complaint fails to state a claim against Defendant Brown because “state
court judges are absolutely immune from monetary damages claims for actions taken in

their judicial capacity, unless the actions are taken in the complete absence of all
jurisdiction.” Sawyer v. Gorman, 317 Fed.Appx. 725, 727 (10th Cir. 2008) (quoting
Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Plaintiff’s allegations against Defendant
Brown show that his actions were taken in his judicial capacity. See Stump v.
Sparkman, 435 U.S. 349, 356–57 (1978) (articulating broad immunity rule that a “judge
will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority”).
b. Defendant Cruz- Martinez
Defendant Cruz-Martinez is a “Unit Manager” at SNMCF. (Doc. 4 at 8). Plaintiff

alleges that he had some questions “about a Habeas Corpus” and that Defendant Cruz-
Martinez did not give Plaintiff any helpful information, “no recommendations, only
screaming at me, blaming my ignorance completely on me.” Id. at 8. When Plaintiff
“brought evidence of [his] being illegally sentenced and held,” Defendant Cruz-Martinez
“brushed aside any evidence presented, and told me to speak with my case manager,”
who “has no power to correct anything.” Id. at 9. Plaintiff also alleges that Defendant
Cruz-Martinez “screamed at me on several occasions,” and when another SNMCF
employee stated that when Defendant Cruz-Martinez was speaking “about a person
falsely imprisoned,” Defendant Cruz-Martinez said “F**k him, let him hire an expensive
lawyer.” Id. at 9. Defendant Cruz-Martinez also allegedly stated “I know about it, we’ve
done all we are going to do” after hearing that Plaintiff was “being held on a
misdemeanor,” and stated “yeah yeah” after Plaintiff told her that a website showed
Plaintiff “as in county jail, not prison.” Id. at 10. After Plaintiff told Defendant Cruz-
Martinez that he “thought the mail-room had lost [his] Power of Attorney,” “She said to

see my case manager, I explained that he was not in and would not be in that day, what
should I do? She said ‘SUE THE STATE.’” Id. at 10.
The Complaint fails to state a claim against Defendant Cruz-Martinez because it
does not explain what specific legal right Plaintiff believes Defendant Cruz-Martinez
violated. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice
Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a
complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.”); Hogan v. Winder, 762 F.3d 1096, 1112 (10th

Cir. 2014) (“Under 42 U.S.C. § 1983, ‘a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States.’”) (quoting West v. Atkins,
487 U.S. 42, 48 (1988)).
c. Defendant Peters
Defendant Peters is a “warden” at SNMCF. (Doc. 4 at 10). Plaintiff alleges that
he wrote a letter to Defendant Peters regarding Plaintiff “being held on a misdemeanor”
and Defendant Cruz-Martinez’s actions. Id. The letter was returned to Plaintiff “saying I
may speak to him during his regular rounds.” Id. When Plaintiff did speak to Defendant
Peters about Defendant Cruz-Martinez, Defendant Peters instructed Plaintiff to write a
grievance. After Plaintiff “explained to him that she was the person that received those
grievances, and that I already take abuse from her, that would only make it worse,”
Defendant Peters “said that it would make it’s [sic] way to Santa Fe.”
The Complaint fails to state a claim against Defendant Peters because it does
not explain what specific legal right Plaintiff believes Defendant Peters violated. See

Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).
d. Defendant Flores
Defendant Flores is a “Deputy Warden” at SNMCF. (Doc. 4 at 11). Plaintiff
alleges that when he was summoned to Defendant Flores’ office to receive legal mail,
Defendant Flores “shoved [a paper] in front of me that stated I had properly received my
mail, and in a commanding voice, told [me] to ‘SIGN HERE.’” Id. Plaintiff also alleges
that: (i) when he complained about a delay in getting paid, Defendant Flores “responded
by yelling ‘YOU WANT PAID OR NOT!’;” (ii) a letter Plaintiff wrote to Defendant Flores

was returned to Plaintiff without a reply; and (iii) when Plaintiff filled out “debit memos”
for each habeas corpus envelope, Defendant Flores said “This is a prison, not Disney
Land.” Id.
The Complaint fails to state a claim against Defendant Flores because it does not
explain what specific legal right Plaintiff believes Defendant Flores violated. See
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).
e. Defendant Luna
Plaintiff does not know Defendant Luna’s position at SNMCF. (Doc. 4 at 12).
Plaintiff alleges that when he “ask[ed] for copies of ‘Verification of Habeas Corpus’,
before [Defendant] Jacobo could answer, [Defendant] Luna interjected ‘It is against
prison policy’.” Id. Plaintiff also alleges that when he “asked again, [Defendant] Luna

insisted that I not be allowed to have copies made, as ‘It is against prison policy’.” Id.
The Complaint fails to state a claim against Defendant Luna because it does not
explain what specific legal right Plaintiff believes Defendant Luna violated. See Nasious
v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158,
1163 (10th Cir. 2007).
f. Defendant Perez
Defendant Perez is a “Case Manager/Classification Officer” at SNMCF. (Doc. 4
at 12). Plaintiff alleges that Defendant Perez “accused [Plaintiff] of complaining about”
Defendant Perez. Id. On the day that Plaintiff was to be released about 10:00 a.m.,

Plaintiff “was run around, and stalled until a few minutes before 6:00 PM.” Id. at 13.
When Plaintiff “was complaining about still being held, [Defendant] Perez then stated
very loudly that they could and possibly would hold me until midnight.” Id.
The Complaint fails to state a claim against Defendant Perez because it does not
explain what specific legal right Plaintiff believes Defendant Perez violated. See Nasious
v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158,
1163 (10th Cir. 2007).
g. Defendant Hernandez
Defendant Hernandez is a “Case Manager” at SNMCF. (Doc. 4 at 13). Plaintiff
alleges that Defendant Hernandez “confronted” Plaintiff and accused Plaintiff of
complaining about Defendant Hernandez. Id. Plaintiff also alleges that Defendant
Hernandez summoned Plaintiff from his pod, was walking Plaintiff to the release area,

and told Plaintiff he “had to walk on the right side [of the passageway], or he would
‘write me up,’ and I would have to stay.” Id.
The Complaint fails to state a claim against Defendant Hernandez because it
does not explain what specific legal right Plaintiff believes Defendant Hernandez
violated. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice
Center, 492 F.3d 1158, 1163 (10th Cir. 2007).
h. Defendant Jacobo
Defendant Jacobo is a “Case Manager” at SNMCF. (Doc. 4 at 13). One morning
Plaintiff went to Defendant Jacobo to get a document notarized and Defendant Jacobo

said “Come back after lunch.” Id. Plaintiff returned after lunch but the Notary did not
show up until a couple days later. Plaintiff also alleges that Defendant Jacobo “‘lost’ my
originals of an informal grievance” and “denied me copies of ‘Verification of Habeas
Corpus’, as against prison policy.” Id. at 14.
The Complaint fails to state a claim against Defendant Jacobo because it does
not explain what specific legal right Plaintiff believes Defendant Jacobo violated. See
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).
i. Defendant Madrid
Defendant Madrid is the “Statewide Disp./Griev. Appeals Manager.” (Doc. 4 at
14). After the “local classifications appeal officer” denied Plaintiff’s “Inmate Classification
Appeal,” Plaintiff sent an appeal to Defendant Madrid who “stated that it must be
handled at facility level.” Id.

The Complaint fails to state a claim against Defendant Madrid because it does
not explain what specific legal right Plaintiff believes Defendant Madrid violated. See
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).
3. Dismissal of Proceedings In Forma Pauperis
Plaintiff is proceeding in forma pauperis. The statute governing proceedings in
forma pauperis states "the court shall dismiss the case at any time if the court
determines that ... the action ... fails to state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2); see also Webb v. Caldwell, 640 Fed.Appx. 800, 802 (10th Cir.

2016) ("We have held that a pro se complaint filed under a grant of ifp can be dismissed
under § 1915(e)(2)(B)(ii) for failure to state a claim ... only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend").
While the Complaint can be dismissed under § 1915(e)(2)(B)(ii) for failure to
state a claim, it is not obvious that it would be futile to give Plaintiff an opportunity to
amend. The Court grants Plaintiff leave to file an amended complaint.
4. Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all
process, and perform all duties in [proceedings in forma pauperis]’). 28 U.S.C. §
1915(d). The Court will not order service of Summons and Complaint on Defendants at
this time because the Complaint fails to state a claim. The Court will order service if
Plaintiff files: (i) an amended complaint that states a claim over which the Court has
jurisdiction; and (ii) a motion for service which provides Defendants’ addresses.
IT IS THEREFORE ORDERED that:
(i) Plaintiff's Motion for Leave to Proceed In Forma Pauperis & Supporting
Affidavit, (Doc. 2), filed July 9, 2020, is GRANTED.
(ii) Plaintiff may file an amended complaint no later than July 31, 2020.
Failure to timely file an amended complaint may result in dismissal of this
case.
IT IS SO ORDERED. (oom
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10280246. Public record. Not legal advice.